RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01770

XXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  He receive a Secretarial directed promotion to the grade of Major (O-4) by the Calendar Year (CY)18 Line of the Air Force (LAF) Major Central Selection Board (CSB) and be given a date of rank (DOR) of 1 Jun 20.

2.  Have any non-selections for promotion to the grade of lieutenant colonel (O-5) be set aside prior to the applicant receiving four Officer Performance Reports (OPRs) with at least 250 days of supervision, in the grade of major (O-4).

3.  If the aforementioned relief were granted, his current OPR closeout in the grade of captain 
(O-3). 

4.  His record not be allowed to be considered for involuntary separation by any future force management reduction programs prior to him receiving four OPRs with at least 250 days of supervision, in the grade of major (O-4).  

APPLICANT’S CONTENTIONS

This request is directly related to the result of two previous Air Force Board for Correction of Military Records (AFBCMR) cases where the Board granted relief.   In this regard, he was retroactively returned to active duty, but experienced a 5-year, 8-month, and 11-day 
break-in-service.  Once reinstated, he became eligible for two major (O-4) promotion boards via a special selection board (SSB) and then met the CY20D Major CSB.  Due to the gap in his records, the three promotion boards non-selected him for promotion, which in turn triggered an involuntary separation of 31 Oct 21 for being passed over twice for promotion. 

The applicant recognizes that the preferred manner of dealing with promotions is through a SSB; however, in his circumstance, the utilization of a SSB to compare his records to his peers was not practical.  He claims, that the Board has previously granted a direct promotion under such extraordinary circumstances, where the applicant’s records could not be reconstructed in such a manner that would allow a fair and equitable promotion board review; the applicant exercised his due diligence in pursuing timely and effective relief; and the probability of his being selected for promotion would have been likely had the original errors not occurred.  Given that the applicant’s break-in-service caused his Officer Selection Record (OSR) for the three promotion boards to reflect only one Officer Performance Report (OPR), one Training Report, and zero OPRs  in the grade of captain (O-3), an SSB is unjust.  Furthermore, the CY18 selection board did not require PRFs, had a 99.2% promotion recommendation rate, and had a 100% promotion opportunity for captains that were considered In-the-Promotion Zone (IPZ) with a promote recommendation from their senior rater.  Moreover, advanced academic degrees were considered during the CY18 selection board, but according to his OSR for the CY18 SSB, this data was masked and his Master’s degree was therefore not taken into consideration.  Had it not been for his erroneous separation and five year break-in-service, the probability of his selection to major (O-4) would have been extremely high.  

Finally, the applicant expresses that this matter is urgent and if relief is not provided in a timely manner, he may find himself in a similar situation to his first erroneous separation: an involuntary separation followed by a retroactive reinstatement and accession onto active duty. 

In support of his appeal, the applicant provides a detailed letter with 14 attachments, which includes his rationale for the direct promotion, documentation from previous BCMR cases where the Board has directed promotions, pertinent excerpts of his military records, a Freedom of Information Act (FOIA) request, which includes the statistics and Personal Services Delivery Memorandum (PSDM) for the CY18 Major CSB. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force captain (O-3).

On 2 Dec 10, the applicant entered the Regular Air Force.  

On 22 Feb 13, the applicant was honorably discharged by reason of Failure to Complete a Course of Instruction.  He was credited with 2 years, 2 months and 21 days of total active service.

On 9 Sep 14, the Board considered and partially granted the applicant’s request to correct the results of the 12-06 Officer Initial Skills Training (IST) Reclassification Panel to show he was selected for the 14N, Intelligence, career field and all references to his medical condition and the withholding of information about his medical condition be removed from paragraphs 3B and 3C of the updated Training Eliminee letter and the AETC Form 125A, Record of Administrative Action, section 4, dated 27 Apr 12. 

On 29 Mar 17, the applicant’s counsel submitted a request for reconsideration, stating that further corrections to the applicant’s record were required because the Board’s previous action nullified the basis for his separation, but did not void the separation itself.

On 4 May 17, the Board considered and granted the applicant’s request to show that he was not discharged from active duty on 22 Feb 13, but continued to serve on active duty.  

On 13 Sep 18, order AS-414 amended order AG-042944, dated 6 Feb 13 to reflect that he was not discharged, but continued to serve on active duty at his home of selection pending further permanent change of station (PCS) orders. 

On 17 Sep 18, Order AO AGA 397 amended order SO AGA 394, dated 13 Sep 18 to reflect that he was to PCS to Goodfellow AFB, TX with a report no later than date (RNLTD) of 4 Nov 18.  

According to AF Form 77, Letter of Evaluation, the applicant received a gap report that states no evaluation were completed from 2 Jul 12 through 4 Nov 18.  

On 30 Jan 20, Order SCJB-0393, amended Special Order JB-04514 issued on 16 Sep 19 and backdated the applicant’s promotion to captain (O-3) with a date or rank (DOR) and effective (DOR) of 3 Sep 14.  

On 29 Apr 21, a memorandum from the applicant’s commander and provided by the applicant, indicates that he was considered, but not selected for promotion by the CY20D Major Line of the Air Force Central Selection Board.  The letter further states, that since this was his second non-select, he is required by law to be involuntarily separated no later than 31 Oct 21.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

APPLICABLE AUTHORITY

AFI 36-2501, Officer Promotions and Selective Continuation, dated 16 Jul 2004:

3.10. Effects of Nonselection for Promotion. Generally, officers not selected for promotion to captain through lieutenant colonel for the second time are separated in accordance with AFI 36-3207, Separating Commissioned Officers, unless they:

	3.10.1. Are retirement eligible or within 2 years of qualifying for retirement (i.e., in the sanctuary) as of the mandatory date of separation (DOS) established for officers twice nonselected for promotion by that board.

		3.10.2. Are selected for continuation.
	
		3.10.3. Have an earlier established DOS.

Chapter 6, Special Selection Boards (SSBs)

6.5. SSB Procedures.

	6.5.2. Consider the records of officers as they would have appeared to the original board had the officers been properly considered. Compare the officers' records with benchmark records from the original boards (paragraph 3.3.)

	6.5.4. Select an officer if the SSB finds him or her fully qualified for promotion and if his or her record scores higher than all the nonselect records and ties at least one of the selected records from the original boa

6.6. Selection by an SSB. Normally, an officer considered by an SSB is selected if the SSB finds him/her fully qualified for promotion and if his/her record scores higher than all the nonselect benchmark records and ties, or beats at least one of the select benchmark records.

	6.6.1. When SECAF determines it is necessary, he/she may, prior to the convening of the SSB, direct the use of a different selection methodology.
	
	6.6.2. When the promotion opportunity at the original board was 100% (fully qualified method of selection), an officer considered by an SSB is selected if the SSB finds him/her fully qualified for promotion.

Definitions:

Fully Qualified— Those officers who meet the minimum qualifications for promotion to the next higher grade.

AIR FORCE EVALUATION

AFPC/DP2SP, recommends granting the applicant’s request to remove his non-selects from the CY18D, CY19E and CY20D Major LAF CSBs.  The applicant was originally released from active duty in 2013; however, the AFBCMR granted a previous request by the applicant and reinstated the applicant to active duty.  The applicant then had an AF Form 77 placed in his record to cover his break-in-service from 2013 to 2017.  As such, the applicant did not have the opportunity to establish a competitive record for promotion for CY18D, CY19E, and CY20D.  

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 15 Jun 21 for comment (Exhibit D), and the applicant replied on 15 Jun 21.  In his response, the applicant notes that while the advisory states that the application was not filed within three years of discovery, his application to the BCMR was in fact filed on 28 Apr 21, four months after learning of his first non-selection to major (O-4).  In addition, the applicant corrects the OPR and states that he was brought back onto active duty in 2018 and not 2017.   The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SP and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  The Board notes that earlier decisions made by the Board corrected the applicant’s record to reflect that he was not discharged on 22 Feb 13, but continued to serve on active duty; however, it appears that our previous action did not provide the applicant the full and fitting relief we intended.  In this regard, the Board’s decision to return him to active duty brought about an almost six year break in service and subsequently caused a gap in his records which then resulted in his non-selection for promotion to major (O-4) and triggered a pending involuntary separation of 31 Oct 21.  The Board recognizes that correction of a military record to indicate an officer was selected for  promotion by a Special Selection Board should be granted only under extraordinary circumstances; i.e., a showing that the officer's record cannot be reconstructed in such a manner so as to permit him/her to compete for promotion on a fair and equitable basis; a showing that the officer exercised due diligence in pursuing timely and effective relief; and lastly, that had the original errors not occurred, the probability of his being selected for promotion would have been extremely high.  As such, we believe that the instances in this case fit these criteria and are of such unique and extraordinary circumstances, which justify a Secretarial directed promotion to major (O-4).  In this regard, the Board notes that had the applicant been retained on active duty he would have met the minimum requirements to be considered In-the-Promotion Zone (IPZ) for the CY18 MAJ LAF Promotion Board, which had a quota for IPZ eligible candidates of 100%.  Furthermore, the Board recognizes that it will take time for the applicant to rebuild his officer selection record (OSR) and given the damage caused by his erroneous discharge and subsequent break-in-service, the Board wants to ensure the applicant is provided the opportunities that would have otherwise been afforded to him.  In view of the above, the Board believes the only viable option at this point in time is to recommend his promotion to the grade of major by the CY18 MAJ LAF Promotion Board.  This recommendation for promotion to major will require Senate confirmation.   In order for the applicant to have adequate time to obtain the time-in-service and needed performance reports to be competitive in his career, the Board further recommends that he not be considered for involuntary separation by future force management reduction programs and any non-selections for promotion to the grade of lieutenant colonel (O-5) be set aside until the applicant receives three (3) Officer Performance Reports (OPRs) with at least 250 days of supervision in the grade of major (O-4).  While the Board noted the applicant’s request to receive four (4) OPRs prior to being considered for involuntary separation by any future force management reduction programs, the Board finds that three (3) Officer Performance Reports (OPRs) with at least 250 days of supervision is in keeping with prior Board decisions with similarly situated members and permits the applicant’s record to become competitive for promotion to the next higher grade in the future.  Therefore, the Board finds no basis to recommend granting this portion of the applicant’s request.  Accordingly, the Board recommends correcting the applicant’s records as indicated below.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that:

1.  All non-selections for promotion to the grade of major (0-4) for the Calendar Year 2018D, Calendar Year 2019E and Calendar Year 2020D Line of the Air Force (LAF) Major Central Selection Board be set aside.

2.  He was considered and selected for promotion to the grade of major (O-4) by the Calendar Year  2020B Special Selection Board, held to consider officers not properly considered by the Calendar Year 2018D Major Central Selection Board, and that action be initiated to obtain Senate confirmation.  

3.  Upon Senate confirmation, he be promoted to the grade of major and awarded an effective date and date of rank as though he had been selected by the Calendar Year 2020B Special Selection Board.  

4.  His record not be considered for involuntary separation by any future force management reduction programs prior to him receiving three (3) Officer Performance Reports (OPRs) with at least 250 days of supervision, in the grade of major (O-4).  

5.  All non-selections for promotion to the grade of lieutenant colonel (O-5) prior to receiving three (3) Officer Performance Reports (OPRs) with at least 250 days of supervision, in the grade of major (O-4), be set aside. 

6.  His current Officer Performance Report (OPR) reflect the grade of captain (O-3).

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2021-01770 in Executive Session on 10 Aug 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 28 Apr 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SP, dated 7 Jun 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 15 Jun 21.
Exhibit E:	Applicant’s response, dated 15 Jun 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.